Courts must not play coroner but doctors to save legal or Constitutional rights from demise before they are extinguished, the Delhi High Court said on Wednesday while granting bail to a UAPA accused who was in custody for more than 12 years as an undertrial in a bomb blast case. A bench of Justices Siddharth Mridul and Justice Anup J Bhambhani said the accused — Mohd Hakim who allegedly carried cycle ball-bearings from Lucknow to Delhi for allegedly making Improvised Explosive Devices (IEDs) to be employed in a series of bomb blasts that occurred in Delhi in 2008 — made out a case of his right to speedy trial being defeated and violated if he is not enlarged on bail.
The accused, in custody since February 2009, approached the high court in appeal against a trial court order rejecting his bail application in the criminal case under several provisions of the Indian Penal Code, 1860, Explosive Substances Act, 1908 and the Unlawful Activities (Prevention) Act, 1967. The bench observed that even if it is assumed that the accused would be awarded a life sentence after the completion of the trial, he has already undergone more than half the sentence he may eventually face.
The appellant has spent more than 12 years in custody as an undertrial; 256 witnesses have been examined over the last about 12 years, but 60 prosecution witnesses still remain to be examined. Regardless of how much longer the trial may take hereafter, the incarceration of more than 12 years suffered by the appellant in custody as an undertrial would certainly qualify as a long enough period for the system to acknowledge that the appellant’s right to speedy trial continues to be defeated, the court stated. Courts must not play coroner and attend to legal or constitutional rights only after they are ‘dead’. Instead we must play doctor, and save such rights from demise before they are extinguished. Courts should pro-actively step-in to protect such rights from being stifled and buried, it observed.
The bench added that the courts must be vigilant, and act as sentinels on the qui vive when it comes to protecting constitutional and legal right. The court also refused to assume that the appellant might be awarded capital punishment, saying that the death sentence was for rarest of rare cases and could not be treated as the default punishment.
In the present case, if the State plans to seek the capital sentence for the appellant, it is therefore all the more necessary that the appellant be afforded a speedy trial; failing which, the appellant deserves at least to be given back his liberty after more than 12 long years of imprisonment as an undertrial, since it cannot be ignored that as of now, the appellant has undergone punishment for more than a decade of his life, for an alleged offence for which he has not yet been found guilty, the court said. The court stated that since the charge framed against the appellant was not under challenge, in view of the Supreme Court’s decision in K A Najeeb case, the enquiry under Article 21 with respect to right to speedy trial would come into play irrespective of the stringent provisions against the grant of bail under section 43D(5) of UAPA.
In the present case, considering that the charge framed against the appellant has not been challenged, neither by the appellant nor even by the State, in our view, the enquiry under Article 21 would come into play notwithstanding the provisions of section 43D(5) of UAPA in light of the dictum in K.A. Najeeb, since an opinion has already been formed by the trial court believing that the accusations against the appellant are prima face true, which opinion is not assailed before us, it said. The court said that the bail was subject to a personal bond in the sum of Rs 25,000 with two local surety in the like amount from family members.
The court added that the accused shall surrender his passport, not travel outside the country without prior permission, keep his cell number active at all times and not contact witnesses or tamper with evidence. The accused sought bail on the ground that his right to a speedy trial was being violated and he deserves to be released on regular bail during the pendency of the trial.
The prosecution contended that offences alleged to have been committed by the accused were grave and heinous. It was stated that a terrorist outfit called ‘Indian Mujahideen’ had taken the responsibility for the serial bomb blasts that occurred in different places in Delhi on September 13, 2008, that left 26 people dead and 135 were injured.
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